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Jerome A. Hill, Petitioner,
vs.
Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, Agency
 
Case:
MSPB No. SF-0752-96-0262-I-1 Petition No. 03970056
 
Location:
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 
Date:
July 31, 1997
 
OPINION: DECISION

INTRODUCTION

On January 11, 1997, Jerome A. Hill (hereinafter referred to as petitioner) petitioned the Equal Employment Opportunity Commission (the Commission) and asked for review of a final decision of the Merit Systems Protection Board (the Board) concerning his allegation of discrimination based on SEC. 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. SEC. 791 et seq. The Commission accepts this petition in accordance with the Civil Service Reform Act of 1978 and EEOC Regulations 29 C.F.R. SEC. 1614.302 et seq.

ISSUE PRESENTED

The issue presented is whether the Board's determination that petitioner failed to prove that the agency discriminated against him based on physical disability (drug abuse) when it removed him from his position as a Tractor Trailer Operator constitutes a correct interpretation of the applicable laws, rules, regulations, and policy directives and is supported by the record as a whole.

BACKGROUND

Petitioner filed an appeal with the Board on December 27, 1995 because he was removed from his position effective December 8, 1995. Petitioner requested a hearing before a Board Administrative Court (AJ) who ultimately issued a finding of no disability discrimination. *fn1 Petitioner subsequently petitioned the full Board asking for a review of the AJ's initial decision. The Board denied review, and thus the initial decision became the Board's final decision. Petitioner then filed a petition with the Commission.

On June 15, 1995, the agency issued petitioner a Notice of Charges, which based a proposed removal on three specific charges. Petitioner was first charged with Being an Unsafe Tractor Trailer Operator, which resulted in the revocation of his Motor Vehicle Operators Identification card. Petitioner was also charged with Absence Without Official Leave (AWOL) and Failure to Follow Instructions since he failed to report for eight hours of remedial driver training.

Thirdly, petitioner was charged with Failure to Abide by a Stipulated Step 2 Last Chance Agreement (LCA). It noted that on November 14, 1994, petitioner entered such an agreement, which provided that he was to maintain satisfactory attendance and good work habits. Furthermore, the Notice stated that other parts of petitioner's past record would also be considered, such as a Seven-Day Suspension for Unsafe Act, Failure to Secure Mail, and Failure to Follow Instructions Resulting in Delay of Mail.

However, on September 26, 1995, petitioner entered another Last Chance Agreement with the agency in which it was agreed that petitioner would be returned to active duty on September 25, 1995, if he submitted to a drug test and enrolled and participated in a structured alcohol/chemical dependency rehabilitation program.

On November 1, 1995, the agency issued petitioner a Notice of Removal based on the charge that he violated the September 26, 1995 LCA. It noted that after petitioner signed the agreement on September 26, 1995, he was immediately sent for a drug test, which indicated a positive result for cocaine. After considering petitioner's response to the charge that he violated the September 1995 LCA, the agency issued petitioner a Letter of Decision dated November 30, 1995, notifying him his removal would be effective December 8, 1995.

The Manager of Transportation indicated that in discussions she had in early to mid-September 1995 with petitioner, she discussed the possibility of a LCA and informed him that drug testing would be a part of the agreement. She indicated that petitioner had been required to attend a Department of Transportation class concerning the random testing for drugs of agency transportation employees.

The Labor Relations Specialist, who issued the September 26, 1995 LCA, indicated that on that day, petitioner came to her office with his first-line supervisor and reviewed the terms of the agreement. She asked petitioner if he wanted a union representative, but petitioner declined.

In his appeal before the Board, petitioner argued that he was involved with a recovery program at the time of the drug test. According to petitioner, he had not used illegal drugs for some time prior to the test, but because of his diabetes, traces of the drugs would remain in his system longer. Petitioner contended that the agreement did not actually take effect until September 27, 1995, and thus the drug test could not have demonstrated a violation of the agreement. Furthermore, petitioner alleged that management improperly proceeded with the LCA even though a union representative was not there to assist him.

In the initial decision, the AJ sustained the agency's removal action since the evidence indicated that petitioner had violated the last-chance settlement agreement. The AJ determined that petitioner did not dispute the positive test result, but rather argued that the terms of the agreement should not be considered to have gone into effect until the day after he signed it. The AJ found however, that the Board had explicitly held in previous decisions that an agreement with language indicating that terms are effective "from" a certain date had been held to be inclusive of that first stated day or date.

Therefore, the AJ determined that the agreement was in effect on September 26th. The AJ noted that petitioner had been advised when he first approached management about a LCA about two weeks before the test that he could be subjected to a test. Furthermore, the AJ noted that petitioner, as well as other motor vehicle operators, had previously received an informational packet concerning the Department of Transportation's drug testing program, which provided for random testing as part of the job. The AJ also noted that the Labor Relations Specialist who provided petitioner with the LCA advised him that he would be sent to the medical unit for testing, and that petitioner expressed no hesitation in submitting to the test that day.

The AJ also found that petitioner failed to establish that he was disabled, based on drug dependency, as he presented no medical diagnosis of such a condition. The AJ also determined that assuming arguendo that appellant could be considered a qualified disabled person, the agency made sufficient prior efforts to accommodate his disability. The AJ noted that the agency provided appellant an earlier last-chance settlement agreement by which it reduced a removal to a suspension.

That agreement also provided petitioner a referral to the Employee Assistance Program, and put him on notice that it represented a last chance to remedy performance deficiencies that may have been the result of substance abuse. The AJ also noted that an agency was under no legal obligation to provide multiple rehabilitation opportunities upon a showing of repeated misconduct that may be caused by substance abuse.

In his petition to the Commission, petitioner again argues that his alleged breach of the LCA occurred prior to its effective date.

ANALYSIS AND FINDINGS

The Commission must determine whether the decision of the Board on petitioner's allegation of disability discrimination constitutes an incorrect interpretation of any applicable law, rule, regulation or policy directive, or is not supported by the evidence in the record as a whole. See 29 C.F.R. SEC. 1614.305(c). In a complaint alleging discrimination based upon physical disability, an appellant must first establish that he or she is a member of the class of persons protected by the Rehabilitation Act of 1973. A person with a disability is one who has a physical or mental impairment which substantially limits one or more of that person's major life activities, has a record of such an impairment, or is regarded as having such an impairment. 29 C.F.R. SEC. 1614.203.

Based on a review of the record, the Commission finds that Board properly determined that petitioner is not a person with a disability. Petitioner's removal and the incident supporting the removal occurred subsequent to the effective date of the Americans with Disabilities Act (ADA). Section 512 of Title V of the ADA amends Section 7(8) of the Rehabilitation Act (29 U.S.C. 706(8)) to exclude from the definition of an individual with a disability persons who currently engage in the illegal use of drugs. The provision does not exclude as an individual with a disability one who has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has other otherwise been rehabilitated successfully and is no longer engaging in such use. See Harris v. USPS, EEOC Petition No. 03940159 (December 15, 1994).

Petitioner does not dispute that at the time he signed the LCA that he tested positive for cocaine use. Petitioner contends that his substance abuse is the result of a disability. However, as stated above, the amendment to the Rehabilitation Act does not cover the kind of drug usage in which petitioner engaged. Therefore, the Commission finds that petitioner is not an individual with a disability by virtue of his drug use, and therefore is not entitled to the protection of the Rehabilitation Act. *fn2

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it is the decision of the Commission to CONCUR with the final decision of the Merit Systems Protection Board which found that the agency's removal action was not discriminatory.

RIGHT TO FILE A CIVIL ACTION (W1092)

This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, WITHIN THIRTY (30) CALENDAR DAYS of the date that you receive this decision. If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.

LOAD-DATE: September 4, 1997

 
Notes:

*fn1 Petitioner also alleged age and race discrimination in his appeal before the Board, but presented no evidence concerning those claims. The AJ did not make findings on these bases.

*fn2 The Commission also notes that petitioner has not presented evidence concerning disparate treatment based on age and race, thus it concludes that there is insufficient proof that such discrimination occurred.